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Kahl v. State8/3/2004
roper only if read to an individual after an arrest. Noting that Freelander read him the notice before his arrest, he thus claims that the notice was untimely and invalid, requiring suppression of his chemical breath test on the Intoxilyzer 5000.
We disagree. On several prior occasions, we have determined that an implied consent notice given at the time of arrest is timely, even if it precedes the formal arrest. [FN7] In so doing, we noted that "under ordinary circumstances, the implied consent warning must be given at the time of the arrest, or at a time as close in proximity to the instant of arrest as the circumstances of the individual case might warrant." [FN8]
FN7. See Oliver, supra at 294(1), 601 S.E.2d 774; State v. Lentsch, 252 Ga.App. 655, 658(3), 556 S.E.2d 248 (2001); Crawford v. State, 246 Ga.App. 344, 345(1), 540 S.E.2d 300 (2000); Bass v. State, 238 Ga.App. 503, 505-506(3)(b), 519 S.E.2d 294 (1999), overruled in part on other grounds, Jones v. State, 272 Ga. 900, 903(2), 537 S.E.2d 80 (2000).
FN8. (Punctuation omitted.) Crawford, supra.
On appeal, Kahl claims that our Supreme Court's opinion in Cooper v. State [FN9] overruled these prior decisions. The Cooper Court declared unconstitutional a portion of OCGA § 40-5-55(a) requiring State-administered drug and alcohol testing of any motor vehicle operator "involved in [a] traffic accident resulting in serious injuries or fatalities," regardless of whether an officer has probable cause to suspect the driver of impaired driving. [FN10] In this case, however, the State administered a breath test to Kahl based on his arrest, not on the nature of any injuries suffered in the collision. [FN11] Because the "serious injuries or fatalities" language is not at issue here, Cooper does not control. [FN12] And nothing in Cooper suggests that an implied consent warning given at the time of arrest, but before the formal arrest, is invalid. [FN13]
FN9. 277 Ga. 282, 587 S.E.2d 605 (2003).
FN10. See id at 282-283, 290-291, 587 S.E.2d 605.
FN11. See OCGA § 40-5-55(a).
FN12. See Oliver, supra at ----(2), 601 S.E.2d 774.
FN13. Kahl's reliance on our recent decisions in Buchanan v. State, 264 Ga.App. 148, 589 S.E.2d 876 (2003), and State v. Goolsby, 262 Ga.App. 867, 586 S.E.2d 754 (2003), is similarly misplaced. Neither case addresses the timing of an implied consent notice or casts doubt on authority that discusses this issue directly.
The evidence shows that Freelander read the implied consent notice to Kahl just seconds before he formally placed Kahl under arrest. Under these circumstances, Freelander properly gave Kahl the notice at the time of his arrest. [FN14] It follows that the trial court did *882 not err in denying Kahl's motion to suppress evidence of the State-administered chemical breath test.
FN14. See Crawford, supra.
Judgment affirmed.
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